Leon v. Danaher Corporation et al

Filing 40

ORDER ADOPTING REPORT AND RECOMMENDATIONS 30 the Objections (Doc. 37) raised by the Plaintiff are OVERRULED, Motion to Dismiss Case 13 is Granted and this action is terminated, A Final Judgment shall enter separately. Signed by Judge David C Bury on 8/30/11. (ALS)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE DISTRICT OF ARIZONA 6 7 Michael A. Leon, 8 9 Plaintiff, vs. 10 Danaher Corporation, et. al., 11 Defendants. 12 ) ) ) ) ) ) ) ) ) ) ) ) CV 10-587-TUC-DCB ORDER 13 14 This matter was referred to the United States Magistrate Judge 15 pursuant to 28 U.S.C. §636(b)(1) and the local rules of practice of this 16 Court, LRCiv 72.1, for a Report and Recommendation on the Defendants’ 17 Motion to Dismiss. Before the Court is the Magistrate Judge’s Report and 18 Recommendation (R&R) on the Defendants’ Motion to Dismiss. The Magistrate 19 Judge recommends to the Court that the Motion to Dismiss should be 20 granted and the action terminated. The Plaintiff filed Objections to the 21 R&R and the Defendants filed a Response to the Objections. 22 STANDARD OF REVIEW 23 When objection is made to the findings and recommendation of a 24 magistrate judge, the district court must conduct a de novo review. 25 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 26 PLAINTIFF’S OBJECTIONS 27 Plaintiff generally objects to all of the legal and evidentiary 28 1 conclusions contained in the Report and Recommendation. 2 clarifies to the Court that he is a “severely disabled pro se litigant 3 receiving social security benefits.” 4 further asserts that he should be allowed to file an amended complaint 5 to attempt to cure the defects. (Objection at 1.) Plaintiff Plaintiff 6 DISCUSSION 7 Before the Court is Plaintiff’s First Amended Complaint. 8 addition, the EEOC dismissed Plaintiff’s claim and notified him of his 9 right to file a lawsuit. In Defendants contended that the named individual 10 employees were not subject to liability in their individual capacities 11 under 12 Plaintiff’s claims were untimely, unexhausted and legally insufficient. 13 Title VII and the ADA. Defendants further contended The R&R recommends, as follows: 14 For the foregoing reasons, Plaintiff’s First Amended 15 Complaint should be dismissed as time-barred with regard to claims arising up to and including his May 11, 2007 16 termination. 17 Complaint should be dismissed for failure to state a claim 18 with regard to Plaintiff’s allegations of post-employment Additionally, retaliation consisting of Plaintiff’s First Amended the posting of his image and 19 security measures, including warnings to employees, allegedly 20 taken 21 Further, by Defendants Plaintiff’s concerning First Plaintiff Amended and Complaint his should son. be dismissed for failure to exhaust administrative remedies with 22 regard to Plaintiff’s post-employment claim of discrimination 23 and 24 refused to contact him after receipt of his resume for job retaliation openings in 2010. concerning allegations that Securaplane Alternatively, with regard to allegations 25 that Defendants retaliated against Plaintiff by refusing to 26 contact him after receipt of his resume for job openings in 27 2010, the First Amended Complaint should be dismissed for failure to state a claim. 28 - 2 - that 1 In the Ninth Circuit a plaintiff must be given leave to 2 amend his complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment. 3 Noll 4 superseded in part by 28 U.S.C. § 1915(e)(2)(B)(ii); see also 5 Cook, Perkiss and Liehe, Inc. v. Northern Calif. Collection v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987), Serv., 911 F.2d 242, 247 (9th Cir. 1991) (“We have held that 6 in dismissals for failure to state a claim, a district court 7 should grant leave to amend even if no request to amend the 8 pleading was made, unless it determines that the pleading could 9 possibly be cured by the allegation of other Complaint after facts.”). 10 11 not Plaintiff filed his First Amended receipt of Defendants’ Motion to Dismiss. The record is clear that Plaintiff’s claims arising during his employment up to 12 and including his May 11, 2007 termination are time-barred 13 and, 14 complaint. Additionally, thus, cannot be cured by further amendment of the amendment of the First Amended Complaint could not cure Plaintiff’s claims of post-employment 15 discrimination given that: (1) his claims concerning the 16 posting 17 measures of his do image not fall at Securaplane within the and other purview of security the anti- discrimination and/or anti-retaliation provisions of Title 18 VII and the ADA; and (2) he has not exhausted administrative 19 remedies concerning his claim that Securaplane’s failure to 20 contact him upon discriminatory or receipt of his retaliatory, resume thus in rendering 2010 the was Court 21 without jurisdiction over such a claim. 22 if the EEOC Charge somehow encompassed Plaintiff’s claim of 23 post-employment retaliation, further Alternatively, even amendment of the complaint cannot cure the deficiencies regarding such claim 24 given Plaintiff’s contention that the alleged retaliation was 25 based upon his involvement in whistleblower activity and 26 complaints all regarding safety issues protected under Title VII or the ADA. and not activity Under the instant 27 circumstances, further amendment of Plaintiff’s complaint 28 would be futile. See Lopez, 203 F.3d at 1127; Noll, 809 F.2d - 3 - 1 at 1448 (citing Broughton v. Cutter Labs., 622 F.2d 458, 460 2 (9th Cir. 1980)). Therefore, Plaintiff’s First Amended Complaint should be dismissed without leave to amend. 3 4 (R&R at 20 - 22.) 5 Pursuant to Fed. R. Civ. P. 12(b), the district court may dismiss 6 a complaint for failure to state a claim upon which relief can be 7 granted, failure to effect proper service, lack of venue or personal 8 jurisdiction, 9 Whittington or v. lack of federal Whittington, 733 subject F.2d matter 620, 621 jurisdiction. (9th Cir. See 1984). 10 A pro se litigant’s pleadings should be liberally construed, and the 11 litigant should be given leave to amend with instructions as to curing 12 the deficiency unless the defects cannot be cured by amendment. See Lopez 13 v. Smith, 203 F.3d 1122, 1124, 1127-29 (9th Cir. 2000) (en banc). The 14 district court, in exercising its inherent power to control its docket, 15 may impose sanctions, including the dismissal of a case. See Bautista v. 16 Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). However, where 17 deficiencies in a second amended complaint are readily curable with some 18 guidance from the court, dismissal without leave to amend is an abuse of 19 discretion. See id. 20 Here, the Court agrees with the R&R that any attempt to cure would 21 be futile. The infirmity in Plaintiff’s action is not inartful pleading, 22 but incurable procedural errors. 23 legally accurate. The R&R is factually thorough and 24 CONCLUSION 25 Accordingly, after conducting a de novo review of the record, 26 IT IS ORDERED that the Court ADOPTS the Report and Recommendation 27 (Doc. 30) in its entirety. 28 Plaintiff are OVERRULED. The Objections (Doc. 37) raised by the - 4 - 1 IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss pursuant 2 to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (Doc. 13) is GRANTED and this 3 action is terminated. 4 A Final Judgment shall enter separately.1 DATED this 30th day of August, 2011. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Although the filing of a notice of appeal generally divests the district court of jurisdiction over those aspects of the case involved in the appeal, the district court’s jurisdiction is not affected when a litigant files a notice of appeal from an unappealable order. Estate of Conners v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993). “When a Notice of Appeal is defective in that it refers to a non-appealable interlocutory order, it does not transfer jurisdiction to the appellate court, and so the ordinary rule that the district court cannot act until the mandate has issued on the appeal does not apply.” Nascimento v. Dummer, 508 F.3d 905, 908 (9th Cir. 2007). In such a case, the district court “may disregard the purported notice of appeal and proceed with the case, knowing that it has not been deprived of jurisdiction.” Ruby v. Secretary of the United States Navy, 365 F.2d 385, 389 (9th Cir. 1966). The R&R was not an appealable In addition, the R&R was not an final order. See 28 U.S.C. § 1291. interlocutory order generally appealable under 28 U.S.C. § 1292(a), and the Court did not provide the statement necessary to make the Order an interlocutory order appealable under 28 U.S.C. § 1292(b) nor was the motion to file the appeal in forma pauperis granted. The Notice of Appeal refers to a non-appealable interlocutory order and, therefore, it did not divest the Court of jurisdiction or preclude resolution of the pending R&R. - 5 -

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